Iraq and Afghan war vets exposed to toxic air struggle for breath — and a diagnosis | PBS NewsHour

[embedyt] https://www.youtube.com/watch?v=zW86Qip-KzA[/embedyt]
“Veterans are pushed through the claims process so fast. VA examiners might do an exam for orthopedic disabilities, the next one may be hearing loss. The next one may be some other type of disability.
And when you’re a physician’s assistant doing that for a living, the odds of you having any real knowledge of complicated exposures, such as burn pits, it’s not likely.” Kerry Baker

Iraq and Afghan war vets exposed to toxic air struggle for breath — and a diagnosis

Among the more than 2.5 million men and women who have served in the wars in Iraq and Afghanistan, there are many veterans — exposed to sandstorms, burn pits and other hazards — who suffer from a mysterious pulmonary illness, as well as the confusion and doubt that surrounds their condition. Read the full article at PBS.org

Kabul Afghanistan – Air Quality, Smoke And Burn Pits – VA Disability …

5 days ago – The Balad burn pitoccupies approximately 10 acres. The burned waste products include, but are not limited to: plastics and Styrofoam, metal/aluminum cans, …

C & P Exam results and feedback – Veterans Compensation & Pension …

Mar 7, 2018 – In addition, there may have been exposure to smoke and particles from military installation “burn pit” fires that incinerated a wide range of toxic waste materials.

I.B.S denied service connection. – VA Disability Compensation …

Jan 16, 2018 – Environmental Hazard in Gulf War. esophageal stricture, 0%, Service Connected. Burn PitExposure. 01/25/2017. eosinophilic esophagitis by biopsy with GERD …

Where is justice? Notice of Judgment Fourth Circuit Court of Appeals …

Jun 20, 2018 – … to hear the case, and likely will not. The only remaining battleground for justice is Congress, which hopefully will set things right. Your Burn PitLitigation Team …

Sleep Apnea Asthma PTSD – VA Disability Compensation Benefits …

Mar 13, 2018 – Question-were you in the Burn PitRegistry? Did VA award for the asthma as directly due to burn pits? Some here have gotten VA doctors to write a DBQ for …

VA Claims Discussions Archives » VA Disability Claims | HadIt.com …

Jun 7, 2018 – Back in the sandbox we were exposed to a huge burn pit24/7 ever since leaving the service I developed some form of asthma, breathing problems requiring me …Read more from HadIt.com on Burn Pits
Ten things veterans should know about burn pits
‘No Escaping It’: Iraq Vets Are Becoming Terminally Ill And Burn Pits May Be To Blame

14 Questions: VA Disability Benefits Claims

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When a Veteran starts considering whether or not to file a VA Disability Claim, they tend to ask many questions. Over the last ten years, the following are the 14 most common basic questions I am asked about when it comes to filing Veterans Affairs Disability Claims. [Reprinted here with permission from Veterans Law Blog] 

1. What benefits do you get from a VA Disability claim?

You can get several major categories of VA benefits when you file a VA Disability claim. 

  • One category is the “Non-Service Connected Pension,” available to extremely low-income veterans with disabilities. 
  • Another category is education benefits. 
  • A third category is burial benefits. 
  • A fourth category is health care benefits. 
  • And the category that is the focus of this post – and the Veterans Law Blog – is disability compensation for diseases, conditions, and disabilities that originated in military service.

(Note that you do not need to show that military service CAUSED the disability – Congress long ago recognized that Veterans should get benefits even if a disease or disability that wasn’t caused BY service has its origins IN service.

  • When it comes to a VA Disability claim for service-connected disabilities, the primary benefit is financial. Once you prove to the VA that your current medical condition, disease, or disability is related to your military service, they will assign a percentage of disability to that condition – using a complicated table and formulas. That percentage of disability translates to a monthly dollar amount. 10% equals one amount….20%, another amount, and so on and so forth.
  • You can look at the current VA Disability claim compensation amounts by clicking here (assuming the Department of Veterans Affairs hasn’t restructured their website, as they commonly do when it gets a little too easy to navigate).
  • In addition to the basic rates of compensation mentioned above, you can get additional compensation for different scenarios you raise in your VA Disability claim. 

Here are just a few:

2. How do I file a VA Disability claim?

It used to be that you could file a VA Disability claim for a service-connected condition, disease, or disability just by writing your claim on a piece of paper – a famous anecdote that floats around the Veterans’ community is the Veteran who wrote his claim on a square of toilet paper while in prison.

This is no longer the case: filing a VA Disability claim has become increasingly complicated, like many other things in this world.

Generally, filing a VA Disability claim requires a series of actions:

Step 1: Filing Phase

You can first file an informal claim for benefits using the required Veterans Affairs Form. If you formalize your claim within one year of that informal claim, the Veterans Affairs treats your informal claim as a formal claim. (You can see where this is headed. One of the things that the Veterans Law Blog works really hard to do is to show you a way to cut through all of this fog and file a VA disability claim that is more likely to get granted, award you the proper benefits, and do so in the shortest time possible.) The rules and steps get goofier and goofier as we go through the steps.

Step 2: Development Phase

You can let the Veterans Affairs develop the evidence to support your claim – officially; they have a Duty to Assist the Veteran in developing certain claims in limited situations. Or, you can be more proactive and develop your OWN claim, filing what is called a “Fully Developed Claim” for VA Benefits. Theoretically, these claims are supposed to be decided more quickly, and for the most part, they are. But by developing your own claim and using the knowledge, information, and tools I share on the Veterans Law Blog, you can set your claim up for more thorough decisions, more proper decisions, quicker decisions, and worst case scenario, if you have to appeal, a better chance at winning your claim on appeal.

Step 3: The Decision Phase

Veterans Affairs will decideC&P (Compensation & Pension) Examinermedical doctor that will decide if your diagnosed conditionhow bad your condition is, percentage-wise
denial or a grant of benefits

4 Pillars of a VA Claim:

  1. Pillar 1: Are you eligible to file a VA Disability claim for compensation benefits
  2. Pillar 2: is the medical condition – or conditions – in your VA Disability claim related to your military service? (This pillar is often called the “service connection” or “nexus” element of your VA Disability claim)
  3. Pillar 3: To what degree does your disability impair your ability to seek and hold work or engage in average daily living activities? I call this pillar the “Impairment Rating.”
  4. Pillar 4: What effective date are you entitled to (it is the effective date that governs how far back in the past your benefits will be retroactive). Some Veterans call this “back-pay” or “past-due benefits,” depending on how long you have been battling the VA. They can often go back decades. A colleague of mine just won a case for a Veteran with service connection granted all the way back to the 1950s, for example.

Step 4: The Administrative Appeal Phase

If you are not satisfied with the VA’s decision in step 3, you can appeal. The first step in the administrative appeal is optional: you can seek a review of your VA Disability Claim by a DRO (Decision Review Officer), or you can “perfect your appeal” by filing several forms in a particular sequence and on a specific timeline. You can get a review by a Veterans Law Judge (VLJ) at the BVA (Board of Veterans Appeals).

  1. You can have that review in an in-person hearing in DC, a video conference hearing from a VA facility near you, or submit a “brief” with “exhibits” and have the VLJ review your claim “on the record” before it.
        1. Deny your appeal (also known as affirming the VA Denial of your VA Disability claim);
        2. Grant your appeal (also known as reversing the VA Denial of your VA Disability claim).

Step 5: The Court Appeal Phase

Step 6: Judicial Review phase

Suppose you are not satisfied with your CAVC Decision. In that case, you have a limited opportunity for judicial review at the Federal Circuit Court of Appeals (Fed Circuit) and then the Supreme Court of the United States. The Fed Circuit only has the ability to decide PURE questions of law… I’d be willing to bet that 80-90% of Fed Circuit decisions in Board cases are “Rule 36’s”….decisions without a written opinion, typically because the Court does not have jurisdiction over the appeal.

Getting review at the Supreme Court is much harder, and appeals to both courts can be costly filing fees alone at the Federal Circuit cost $500, and the cost of copying and filing the brief and the record of proceedings below costs between $2,000 and $5,000. Hence, attorneys and Veterans tend to be more conservative about appeals to these courts.

3. When do I file a VA Disability Claim?

Ideally, you want to file your VA disability claim within the first year after leaving service. (Learn about the one VA Program I like – the Benefits at Discharge Delivery, or BDD, Program)

However, most conditions do not get diagnosed for years or decades after service. In those cases, if you are filing an original VA Disability claim (i.e., for the first time), you should file at least the informal claim mentioned above as soon as you suspect your condition is related to military service.

This protects the earliest possible effective date for your VA Disability benefits.

If you are filing a claim for increased compensation, you want to file the claim for increased rating as soon as you believe your condition is worsening.

4. Where do I file a VA Disability claim?

Technically, your VA Disability claim is filed with the VA Regional Office for your geographic area.

However, you can file your VA Disability claim online through the eBenefits portal for Veterans, or, if you want to be sure that you create a paper trail for your claim to make sure the VA does not lose it, you can file it by sending it to the Evidence Intake Center (also known as the VA’s EIC in Janesville, Wisconsin).

5. Who Can Help Me with a VA Disability Claim?

Anyone that you trust can help you with a VA Disability claim.

However, nobody can charge you a fee for filing your VA Disability claim – attorneys and accredited agents are only allowed to charge a fee for filing or helping you in your VA Disability claim after the VA has denied the claim.

So, while an illegal immigrant can hire an attorney to fight deportation whenever they can afford it, Veterans who served our country in uniform are not legally allowed to pay for an attorney or experienced professional accredited agent’s help until the VA denies them a benefit.

While a criminal charged with a crime has a constitutional right to an attorney, veterans who fought and bled to preserve the Constitution are prohibited from exercising their right to hire and pay an attorney or experienced professional until the VA screws them over first.

Some national organizations, like the Disabled American Veterans (DAV), Veterans of Foreign Wars (VFW), and the American Legion (Legion or AL), have what are called “Veteran’s service representatives” or VSOs that volunteer to help with filing initial claims. The quality of work or help you get varies widely, and I’ve seen both extremes: VSOs that do amazing work for free and VSOs that pull the rug out from under their “client” or “member.

Organizations like the Paralyzed Veterans Association (PVA) and the Vietnam Veterans of America (VVA) get consistently high marks for the work they do for their members.

6. How Long Does a VA Disability Claim Take?

The amount of time that it takes for the VA to decide on a VA Disability claim can vary greatly and depends on a lot of variables: how difficult your claim is, how many conditions you include in the VA Disability claim, how well your claim is prepared, whether your claim is a Fully Developed Claim or not, how big your VA Regional Office is, etc.

Here are some general rules:

  • If you click here, the VA says that time is 114 days (ish) for a Fully Developed Claim and 121 days (ish) for a non-FDC claim. In 10 years of representing hundreds of Veterans and talking with tens of thousands more, I’ve never met a Veteran that got a decision in 125 or fewer days. I’ve met a couple that had a decision within 3-6 months. Most Veterans should plan on the process taking about 12-18 months, from file to decision. And that’s not counting the appeals.
  • If you are bored or like looking at small numbers on mind-numbingly complicated spreadsheets, click here to see how long claims are currently taking in your geographic region. These spreadsheets are consistent with everything the VA does….hard to understand, loaded with jargon, and obvious number juggling to hide problems in the system. Pour a scotch or glass of wine.
  • Claims for VA disability benefits that are filed with smaller urban and rural VA Regional Offices are faster than VA Disability claims filed with larger metropolitan VA Regional Offices.
  • Once you file an appeal, it can take 3-10 years to get a decision, depending on variables that are too numerous to list here.
  • Veterans can speed up the timeframe by filing well-developed and well-documented Fully Developed Claims, as we teach here on the Veterans Law Blog.

7. How Do I Check the Status of My VA Disability Claim?

That, right there, is the million-dollar question.

The VA will tell you to call their VA toll-free number 1-800-827-1000 to get the status. Veterans that use this approach find that they can enjoy their favorite hobby while waiting to talk to someone at the VA: some Veterans relax and enjoy 2-3 hours of hold “muzak,” others read the week’s newspapers or a few magazines, and others have actually written a book while waiting on hold. If you are among the patient and lucky few that get through to a human being on the 1-800 line, here are some tips and pointers on how to get more value and information out of the call.

The VA also suggests that you check your status on eBenefits. Be forewarned, though – eBenefits is a glitchy and inaccurate tool. For example, if you log into my eBenefits account, it shows that the VA held a hearing on my VA Disability Claim 2 years before I filed it. That’s a true story, folks. Now that is efficiency – maybe the VA will start a new pilot program: the pre-claim denial process.

Be careful what you see on eBenefits it’s not always your claim status, it’s not always accurate, and it’s rarely up to date.

8. How Are Benefits in a VA Disability Claim Calculated?

I wish I could tell you that the VA simply added up your disability ratings from individual conditions to reach your total disability rating and paid you according to that rating.

But the VA doesn’t do it that way. They use a unique “VA Math” system to “combine” your individual disability ratings into a total. Then they award a monthly compensation amount corresponding to the resulting total impairment rating.

You can read more about impairment ratings here – Veterans have much more control over these ratings than they have been led to believe. I teach Veterans how to improve or maximize their ratings for a TON of conditions – knee/arthritissleep apneaPTSDTinnitusHearing LossFibromyalgia and Chronic FatigueGulf WarMigrainesDiabetesParkinson’s Disease, and many more!

In my 5+ hour video training course, “How to Prove the 4 Pillars of a VA Claim “, I teach Veterans how to prove the 4 Pillars of a VA Claim, including a lot of specific ways to prove the degree of disability you experience and get the highest rating possible.

9. Are VA Disability Benefits Retroactive?

Yes, they are. The question is, “how far do they go back”?

There is a whole set of rules that helps the VA decide how far back in time to go to pay retroactive benefits. These rules are called the effective date rules, and there are hundreds of them.

There are a few general guidelines; it’s not all the rules for every type of VA Disability Claim effective date, but it should give you an idea of how much you have NOT been told about VA disability benefits over the years.

  • In most VA disability claims, the effective date will be the LATER of the date you filed your claim and the date the entitlement arose. Click here to learn more about what that means.
  • If you file your VA disability claim within one year of leaving service, your effective date will typically be your date of separation from military service.
  • Claims for Increased compensation rates follow the general effective date rule, except that if you can show that the worsening of your condition started to occur BEFORE you filed your claim, you can get up to 1 year earlier.
  • In some cases, if the law changes while you are trying to prove a claim or after you’ve been denied a claim, and your claim is granted pursuant to that change in the law, that makes it easier for you to win (in other words, the change in the law is a “claim liberalizing rule”) you may be able to get up to 1 year prior to the date of your claim as your effective date.
  • Suppose you reopen a previously denied claim by submitting New and Material Evidence, and you win the reopened VA Disability claim based on military records, military service records, or military medical records that were previously unavailable to the VA or that the VA neglected to get in the prior claim. In that case, you can use the effective date rule in 38 CFR 3.156(c) to get an effective date of your original VA Disability claim date.
  • Suppose you submit New and Material evidence within one year of the date your rating decision denied your VA Disability claim. In that case, your claim is “open and pending” until the VA issues a new ratings decision. If your benefits are granted based on that new and material evidence, your effective date could be the original date of your claim. This is a dangerous path to take, though, because if the VA denies your claim because the evidence wasn’t New and Material, then you may have lost your original effective date if you did not file an appeal within that same year after the VA Ratings Decision.
  • If you are a “Nehmer Class Member,” meaning a veteran exposed to dioxin (aka, Agent Orange in Thailand, Vietnam, Korea, or other places), a whole set of effective date rules apply due to the VA’s settlement of a class action lawsuit in the 1980s. These are called the “Nehmer Rules,” and they can get pretty complicated pretty quick.
  • A survivor who files a claim for survivor benefits (DICservice connection of the cause of death and substitution, for example) will get survivor benefits retroactive to the date of the Veteran’s death if they filed their VA Form 21-534 within one (1) year of the Veteran’s death. If they file the claim for accrued benefits within that year, they may be able to get retroactive benefits paid to the date of any VA Disability claim or appeal pending on the date of the Veteran’s death.

10. Are VA Disability benefits permanent?

I’ll answer this question along with #11.

11. Are VA Disability Benefits Permanent?

Generally speaking, they can be.

If a medical condition substantially improves, the VA can propose to reduce your disability compensation benefits to different levels. The rules that they have to follow to do this can differ depending on certain factors, but here are a few considerations; you can click here to learn more about how the VA tries to pick Veterans’ pockets by reducing benefits and get an idea how to stop it.

  • The VA can only reduce “continuous ratings” (those that have been in effect for 20 years or more) after showing that they were awarded based on actual fraud by the Veteran.
  • There are three types of ratings in VA Disability claims that are considered “protected” ratings, which the VA cannot reduce without showing first a “substantial improvement” in your medical condition.
  • Suppose a VA Disability rating is considered “unprotected.” In that case, the VA can reduce it, but they have to send you notice of their intent to respond, give you an opportunity to respond and submit evidence and, if you request it, provide a hearing. The timelines on this type of reduction are pretty friendly to the VA and pretty hard for the person filing the VA Disability claim to understand, no less follow, so be ready to move quickly and do plenty of legwork to understand what is happening and how to stop it.
  • If you are incarcerated for more than 60 days, on the 61st day, the VA can reduce your VA Disability compensation to no less than 10% and must reinstate it after your release from jail. Click here to learn more about each time of rating and how long they stay in effect.

12. Are VA Disability Benefits Subject to Child Support?

Yes.

In every state I am aware of, VA Disability benefits are considered income for calculating child support.

Child support laws differ in each state, so there may be nuances from state to state how much is subject to child support, particularly when military retirement payments offset a portion of your VA Disability benefits. The best thing to do is get out ahead of this situation by talking to a local family law attorney and making sure you do right by your kids, state law, and federal law.

If you need a referral to a family law attorney in Texas or Arkansas, fill out a support ticket. I know a lot of family law attorneys in both states and may be able to give you a couple of referrals.

13. Are Benefits From My VA Disability Compensation Claim Taxable?

Nope.

At least not under Federal law. Amounts paid to Veterans or their families for education, training, subsistence allowances, clothing allowances, disability compensation, and/or pension payments are not taxable by the Feds.

As to whether these benefits are taxable at the State level, consult your state’s income tax agency, as the answer will vary state by state.

14. What Conditions Are Most Common in a VA Disability Claim?

The VA actually publishes a report of the conditions it service connects, the average ratings for each, and more. Click here to check out the report.

If you don’t have the stomach to read MORE VA propaganda – and honestly, who can blame you – here are the Top 10 conditions that the VA reports as being part of most original VA Disability Claims ((click on the links to see information published on the Veterans Law Blog about these conditions common to VA Disability claims)

Here are some other conditions that I see very frequently in many a VA Disability Claim (click on the links to see information published on the Veterans Law Blog about these conditions common to VA Disability claims)

Most Common VA Disabilities Claimed for Compensation:   

tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

Musculoskeletal VA Disability Claims – Sharp v Shulkin May Make Higher Disability Percentage Ratings Possible

[no_toc]
USCAVC Sharp v. Shulkin No. 16-1385 Mr. Sharp, an Army Korean War veteran who suffers from numerous musculoskeletal injuries, argued that Veterans Affairs medical examinations he received were inadequate because the examiner failed to “ascertain adequate information — i.e., frequency, duration, characteristics, severity, or functional loss — regarding his flares by alternative means,” according to court documents. Mr. Sharp contended that the 10% disability rating he received for his injuries was therefore insufficient because his “September 2015 evaluation was inadequate for evaluation purposes and the Board’s finding to the contrary was clearly erroneous.” In September 2017, the claims court agreed.

The Sharp case clarifies the responsibilities of the C and P examiners and the BVA in giving opinions on pain flare-ups in musculoskeletal disabilities claims. The court ruled the current system was inadequate.

Read the full article below:
https://taskandpurpose.com/vets-may-now-able-get-higher-disability-ratings-service-connected-injuries/

Title 38: Pensions, Bonuses, and Veterans’ Relief PART 4—SCHEDULE FOR RATING DISABILITIES  Subpart B—Disability Ratings

The Musculoskeletal System
§4.40   Functional loss.
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.
§4.41   History of injury.
In considering the residuals of injury, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for, and the effect of, treatment over past periods, and the course of the recovery to date. The duration of the initial, and any subsequent, period of total incapacity, especially periods reflecting delayed union, inflammation, swelling, drainage, or operative intervention, should be given close attention. This consideration, or the absence of clear cut evidence of injury, may result in classifying the disability as not of traumatic origin, either reflecting congenital or developmental etiology, or the effects of healed disease.
§4.42   Complete medical examination of injury cases.
The importance of complete medical examination of injury cases at the time of first medical examination by the Department of Veterans Affairs cannot be overemphasized. When possible, this should include complete neurological and psychiatric examination, and other special examinations indicated by the physical condition, in addition to the required general and orthopedic or surgical examinations. When complete examinations are not conducted covering all systems of the body affected by disease or injury, it is impossible to visualize the nature and extent of the service connected disability. Incomplete examination is a common cause of incorrect diagnosis, especially in the neurological and psychiatric fields, and frequently leaves the Department of Veterans Affairs in doubt as to the presence or absence of disabling conditions at the time of the examination.

eCFR

The Office of the Federal Register publishes documents on behalf of Federal agencies but does not have any authority over their programs. We recommend you directly contact the agency responsible for the content in question.

Back and Cervical Pain – Bulging Disc and the C and P Exam ROM Test – Hadit.com For Veterans Who’ve Had it With The VA

I have a C&P coming up in October for Neck/Back pains. While in Iraq in 2004, I fell off of a 916 semi-truck and have buddy statements to verify this.


 

Read more about Musculoskeletal VA Disability Claims

site:hadit.com Musculoskeletal + “flare up” – Google Search

Jun 11, 2017 … If the examination is not being conducted during a flare- up: [ ] The examination is medically consistent with ….. wears brace when he leaves the …

List By Symptom – VA Disability Compensation

In March 2020 the VA removed the DBQ’s from their website. NVLSP.org has made them available to the public here
See above, the links below currently are broken, since the VA removed the DBQ’s
Disability Benefits Questionnaire (DBQ) Veterans now have more control over the disability claims process. Veterans have the option of visiting a private health care provider instead of a VA facility to complete their disability evaluation form.
Veterans can have their providers fill out any of the more than 70 DBQs that are appropriate for their conditions and submit them to us. It’s that easy!
Source: www.benefits.va.gov
Current as of 09/05/207 Check here for the latest Disability Benefits Questionnaire (DBQ) 

Cardiovascular

Conditions – Symptoms Form Name
Evaluation of varicose veins, arterial diseases, producing swelling, claudication of legs, or pain on walking, skin/nail changes Artery and Vein Conditions (Vascular Diseases including varicose veins)
Evaluation of high blood pressure (BP): how to determine significance of BP readings or BP reading abnormalities. Hypertension
Conditions including: heart attack (MI), irregular rhythm, heart murmurs and heart surgery. Heart Conditions (Including IHD, Non-IHD, Arrhythmias Valvular Disease and Cardiac Surgery)

Dental and Oral

Conditions – Symptoms Form Name
Evaluation of all dental and oral conditions, except TMJ Conditions. Dental and Oral Conditions
Evaluation of conditions affecting the TMJ joint with pain in the jaw when biting and clicks and sounds in the jaw. Temporomandibular Joint (TMJ) Conditions

Dermatological

Conditions – Symptoms Form Name
Evaluation for infectious and non-infectious diseases of the skin: how to evaluate rashes, spots, athlete’s foot, sweating, and acne skin lesions. Skin Diseases
Evaluation of palpable or disfiguring scars, producing distortion or asymmetry. Scars and Disfigurement

Ear, Nose, and Throat

Conditions – Symptoms Form Name
Evaluation of various conditions of the ear including: infections, dizziness, vertigo, acoustic tumors and other conditions with ringing in the ears (tinnitus). Ear Condition (including: Vestibular and Infectious Conditions)
Evaluation of Anosmia (inability to detect any odor), Hyposmia (reduced ability to detect odors), Ageusia (complete lack of taste), Hypogeusia (decrease in sense of taste) and other conditions affecting the sense of smell and taste. Loss of Sense of Smell and/or Taste
Evaluation of conditions affecting, the sinuses, nose, throat, larynx, and pharynx, including, but not limited to deviated nasal septum and organic aphonia, vocal chord problems. Sinusitis, Rhinitis, and other Conditions of the Nose, Throat, Larynx, and Pharynx

Endocrinological

Conditions – Symptoms Form Name
Evaluation of DM Type I or II, with alteration of blood sugar regulation, abnormal Glucose Tolerance Test (GTT), requiring medication or hospitalization or complications. Diabetes Mellitus (DM)
Evaluation of conditions affecting the hormone glands, including, but not limited to Cushing’s syndrome, Acromegaly, and Addison’s Disease. Endocrine Diseases (other than Thyroid and Parathyroid, or Diabetes Mellitus)
Evaluation of conditions affecting the functions regulated by the thyroid and parathyroid glands, including, but not limited to growth and metabolism. Thyroid and Parathyroid Conditions

Gastrointestinal

Conditions – Symptoms Form Name
Evaluation of conditions affecting the esophagus such as stricture, spasm, or other conditions with lump in throat or chest, pain on swallowing, or regurgitation. Esophageal Conditions (including GERD, Hiatal Hernia, and Other Esophageal Disorders)
Evaluation of gallbladder disease, with inflammation, gallstones, pain after eating fatty food, or pancreatic conditions including pancreatitis that manifests as severe recurrent abdominal pain. Gallbladder and Pancreas Conditions
Evaluation of Irritable Bowel Syndrome (IBS) (chronic recurrent diarrhea or constipation). Ulcerative colitis (chronic inflammatory bowel condition leading to erosions and bleeding) and other conditions with Bloody stools, fistulas, and/or abscess. Intestinal Conditions (other than surgical or infectious) including Irritable Bowel Syndrome, Crohn’s Disease, Ulcerative Colitis, and Diverticulits
Evaluation of hepatitis (which refers to a variety of inflammatory and infectious conditions) and Cirrhosis (chronic liver disease resulting from liver injury leading to degeneration of the liver)and other conditions characterized by jaundice, ascitis, fluid retention. Hepatitis, Cirrhosis and Other Liver Conditions
Evaluation of peritoneal adhesions, which are scars of the visceral lining of the abdominal structures that produces episodes of partial or complete bowel obstruction. Peritoneal Adhesions
Evaluation of stomach and duodenum conditions such as peptic ulcer disease, recurrent pain relieved by antacids, bloody stools, nausea or vomiting, indigestion. Stomach and Duodenum Conditions (not including GERD or Esophageal Disorders)
Evaluation of Amebiasis, dysentery, and various types of intestinal parasites with recurrent diarrhea, alteration in stool consistency or foul smell. Infectious Intestinal Disorders, including Bacterial and Parasitic Infections
Evaluation of removal of portions of the intestine and reconstruction and diversion of the intestinal tract: bowel diversion that requires use of external bags to collect stool. Intestinal Surgery (Bowel Resection, Colostomy, and Ileostomy)

Genitourinary

Conditions – Symptoms Form Name
Evaluation of renal diseases including Nephritis, renal insufficiency, and other diseases of the kidney: kidney failure, abnormal kidney function tests, protein in the urine, edema, kidney stones. Kidney Conditions (Nephrology)
Evaluation of diseases of the urethra, penis, testes, and scrotum, producing pain on urination, swelling, blood in urine or incontinence. Male Reproductive Organ Conditions
Evaluation of malignant lesions of the prostate gland with frequent diurnal or nocturnal urination. Prostate Cancer
Evaluation of conditions affecting the bladder and urethra, including, but not limited to voiding dysfunctions and infections. Urinary Tract (Bladder and Urethra)

Gynecological

Conditions – Symptoms Form Name
Evaluation of inflammatory neoplastic and cystic lesions of the breast: Breast mass or lumps. Breast Conditions and Disorders
Evaluation of diseases of the female genital tract including: uterus, vagina, cervix, ovaries, endometriosis, complications of pregnancy, and other conditions. Gynecological Conditions

Hematologic and Lymphatic

Conditions – Symptoms Form Name
Evaluation of conditions of red and white blood cells, producing anemias, leukemias on tumors such as lymphomas. Hematologic and Lymphatic Conditions

Infectious Diseases

Conditions – Symptoms Form Name
Evaluation of conditions associated with the Human Immunodeficiency Virus (HIV) and its treatment. HIV-Related Illnesses
Evaluation of infectious diseases not specifically-associated with either HIV or military service in a tropical area, the Persian Gulf, or Afghanistan. Infectious Diseases
Evaluation of infectious diseases associated with military service in tropical areas with exposure to salmonella, shigella, etc. producing symptoms such as chronic diarrhea. Persian Gulf and Afghanistan Infectious Diseases
Evaluation of conditions in which the immune system begins attacking healthy body tissues, including, but not limited to, Goodpasture’s syndrome and Guillain-Barre syndrome. Systemic Lupus Erthematosus (SLE) and Other Autoimmune Diseases
Evaluation of pulmonary and extrapulmonary tuberculosis symptoms. Tuberculosis (TB)
For use in evaluation of vitamin deficiencies (Beriberi, Pellagra, syndromes of dermatitis, diarrhea dementia in POW, post-GI surgery, bypass procedures, undernutrition and malabsorption.) Nutritional Deficiencies

Musculoskeletal

Conditions – Symptoms Form Name
Evaluation of extremity, limb or digit (complete or partial amputation), and complications. Evaluation of stumps. Amputations
Evaluation of ankle pain, persistent deformity (ankylosis), ankle injuries, reduction of movement, and use of assistive device. Ankle Conditions
Evaluation for non-degenerative arthritic conditions such as Gout and Rheumatoid Arthritis: recurrent painful and swollen joints. Non-degenerative Arthritis (including Inflammatory, Autoimmune, Crystalline, and Infectious Arthritis) and Dysbaric Osteonecrosis
Evaluation of injuries, deformities, loss of elbow and forearm producing motion limitation. Elbow and Forearm Conditions
Evaluation of reduction or loss of toe function and motion, and alteration in mobility. Foot conditions including flatfoot (pes planus)
Evaluation of alteration in motion of the wrists or digits due to tendon or muscle injuries, and alteration in motion and function of the hand including ankylosis, trigger finger, loss of finger movement. Hand and Finger Conditions
Evaluation of alteration in extension and flexion, poor postural and body support, and alteration of rotation of the hip. Hip and Thigh Conditions
Evaluation of ankylosis of the knee, subluxation of the knee, knee instability, meniscus lesions, and functional limitations knee cartilage problems, locked knee. Knee and Lower Leg Conditions
Evaluation of traumatic and other injuries resulting in loss or alteration of function, location, type, tears, and weakness: torn scarred muscles. Muscle Injuries
Evaluation of bone infections producing fever, local alteration of function, residuals from a bone infection with persistent drainage or bone alteration Osteomyelitis
Evaluation of arm limitation of function, dislocation, alteration in joint function, incomplete movements, deformity, dislocation, nonunion, and fracture complications : frozen shoulder. Shoulder and Arm Conditions
Evaluation of arthritis and neck deformities. Neck (Cervical Spine) Conditions
Evaluation of unfavorable or incomplete wrist motion due to ankylosis (limitation in range), painful or other alteration in function, resulting from traumatic or other injury complications, joint replacement. Wrist Conditions
Evaluation of chronic low back pain, arthritis and back injuries, spinal conditions or disc disease: low back pain with sciatica. Back (Thoracolumbar Spine) Conditions

Neurological

Conditions – Symptoms Form Name
Evaluation of progressive degenerative disease of the brain and spinal cord with progressive muscle weakness and wasting, speech, swallowing and breathing problems. Amyotrophic Lateral Sclerosis (Lou Gehrig’s Disease)
Evaluation of alteration of the function of the nerves (motor and sensory), related to Diabetes Mellitus: weakness, numbness, tingling of legs and arms related to diabetes. Diabetic Sensory-Motor Peripheral Neuropathy
Evaluation of numerous other neurologic conditions such as: meningitis, HIV, brain abscess, Lyme Disease, encephalitis, stroke, brain tumor, and spinal cord injury. Central Nervous System and Neuromuscular Diseases (except TBI, ALS, Parkinson’s Disease, MS, Headaches, TMJ, Epilepsy, Narcolepsy, Peripheral Nerves, Sleep Apnea, Cranial Nerves, Fibromyalgia, and Chronic Fatigue Syndrome)
Evaluation of conditions affecting the following nerves in the Cranium: V (trigeminal, VII (facial), IX (glossopharyngeal), X (vagus), XI (spinal accessory), and XII (hypoglossal). (Conditions affecting cranial nerves I (olfactory), II (optic), III (oculomotor), IV (trochlear), VI(abducens), and VIII (vestibulocochlear (auditory)) are addressed in other DBQs.) Cranial Nerve Conditions
Evaluation of recurrent episodes of head pain producing work limitation or incapacitation: with other symptoms such as nausea, vomiting, tearing etc. Headaches (including Migraine Headaches)
Evaluation of fibromyalgia components, including, but not limited to sleep problems, muscle and joint pain, and altered affect. Fibromyalgia
Evaluation of disorders of the myelin sheath of the central nervous systems producing recurrent alterations of neurological function: such as weakness, numbness, urine incontinence, visual symptoms. Multiple Sclerosis (MS)
Evaluation of symptoms that may include tremors, or trembling in hands, arms, legs, jaw, and face; rigidity, or stiffness of the limbs and trunk; bradykinesia, or slowness of movement; and postural instability, or impaired balance and coordination. Other symptoms may include depression and other emotional changes; difficulty in swallowing, chewing, and speaking; urinary problems or constipation; skin problems; and sleep disruptions. Parkinson’s Disease
Evaluation of narcolepsy components, including, but not limited to, sleep attacks, sleepiness, paralysis, and cataplexy. Narcolepsy
Evaluation of alteration of the function of Nerves associated with metabolic disorders, exposure to toxins, infections, immunological disorders, or inflammation and other conditions. Peripheral Nerve Conditions (not including Diabetes Sensory-Motor peripheral Neuropathy)
Evaluation of seizure conditions including epilepsy. Seizure Disorders

Ophthalmological

Conditions – Symptoms Form Name
Evaluation of various diseases of the eye, such as inflammation, infection, glaucoma, deformities, alteration of tear ducts, cataracts, retina disease, and other conditions. Eye Conditions

Psychological

Conditions – Symptoms Form Name
Evaluation for anorexia, bulimia, and other eating disorders. Eating Disorders
Evaluation of symptoms, history, and impact related to mental disorders: depression, mood and affective disorders, psychosis, etc. Mental Disorders (other than PTSD)
Evaluation of beginning and extent of symptoms (acute – length of symptoms is usually less than 3 months, chronic – symptoms usually last 3 months or more, with delayed onset – usually at least 6 months have passed between the traumatic experience and the beginning of symptoms). Symptoms may include: recurrent experiences of a traumatic event, avoiding an excitant or irritant associated with the trauma, deadening of general responsiveness, increased arousal, including insomnia, recurrent nightmares, and extreme caution; exhibiting an inflated frightened response; and experiencing changes in hostility.. Review Evaluation of PTSD

Respiratory

Conditions – Symptoms Form Name
Evaluation of the respiratory system except Sleep Apnea and Tuberculosis. Respiratory Conditions (other than TB and Sleep Apnea)
Evaluation of disorder characterized by cessation of breathing during sleep and provides information necessary to determine functional impact (sleep apnea, snoring) daytime complications. Sleep Apnea

Rheumatological Diseases

Conditions – Symptoms Form Name
Evaluation of Chronic Fatigue Syndrome. Components including but not limited to tiredness, loss of memory or concentration and enlarged lymph nodes. Chronic Fatigue Syndrome

General Surgical

Conditions – Symptoms Form Name
Evaluation of conditions involving internal organs bulging through the muscle, except hiatal hernia. Hernias (including Abdominal, Inguinal, and Femoral Hernias)
Evaluation of rectum and anus conditions causing alteration of sphincter control, stricture of prolapse, fistula, and other symptoms. Bowel incontinence or severe constipation blood in stools. Rectum and Anus Conditions (including Hemorrhoids)

Further Reading:

ptsd Please review my C&P Sleep Apnea DBQ – Veterans …

https://community.hadit.com › … › Veterans Compensation & Pension Exams

 

Mar 27, 2017 – Posted March 27, 2017. Hello guys, please let me know what you think about my Sleep Apnea DBQ, hopefully this is enough to get my service connected? 30% or 50%?. Sleep Apnea Disability Benefits Questionnaire. Is this DBQ being completed in conjunction with a VA 21-2507, C&P Examination. Request? [X] Yes [ ] No.

How Long Does A Gulf War Illness C&p Exam Take? – Veterans …

https://community.hadit.com › … › Veterans Compensation & Pension Exams

 

3 days ago – Depends on what you are claiming. If you are claiming a multitude injuries/ symptoms/benefits then it could take that long. What will happen in the exam: The doctor/nurse/pa, etc. will have your claimed disabilities and will exam/question you for for each one according to the DBQ(Disability Questionnaire) for the particular …

DBQ Chronic Adjustment disorder – Veterans Compensation Benefits …

https://community.hadit.com › … › Veterans Compensation & Pension Exams

 

Jun 1, 2017 – Well not to sure how this will pan out any ideas? Will they finally seperate my PTSD/ AD from my TBI maybe maybe not ones getting a call to the complaint line if not? I was just found Permanent and total two days ago with this claim still pending I’m still awaiting the award letter. I’m hoping this won’t hurt my PT due that I …

Michigander – Veterans Compensation Benefits Claims – Hadit.com

https://community.hadit.com/profile/24501-michigander/

 

Nov 19, 2017 – $400 that she recommended she knew and for me to go to and have a DBQ filled out to file my claim. I chose to ignore that advice and began reading up and asking questions on the Hadit site. With the help on Hadit and on the podcast I was able to educate myself and file my claim even as a FDC (Fully Developed Claim).

Is it me or is my claim moving really fast? – Veterans Compensation …

https://community.hadit.com › … › Veterans Compensation Benefits Claims Research

 

3 days ago – Posted June 22, 2016. I filed a claim for bilateral lower extremity radiculopathy secondary to lower back and the doctor said it was caused by a foot fracture :). The DBQ is on MyHealthVet. I just checked ebenefits and the status has changed to Pending Decision Approval with an estimated completion date 6/28/16 to 7/2/ 16.

Leaderboard – Veterans Compensation Benefits Claims

https://community.hadit.com/leaderboard/

 

Dec 31, 2017 – I submitted PTSD DBQ along with other evidence as a FDC claim. Thanks so much, and I really appreciate all the support from Hadit. Been a long couple of years, but I am so grateful for you guys, and the fact the Military and Govt is admitting what they put me thru. Hope you all have a Happy New Year, and God Bless!!!

MST Claim – I have started the journey – Veterans Compensation …

https://community.hadit.com › Specialized Claims › MST – Military Sexual Trauma

 

May 5, 2017 – My exam is tomorrow… and I just looked at the letter for the C&P and the exam time allows for 2 hours and it has a section for the examiner of “Special clinic instructions”. Services Requested: DBQ PSYCH PTSD initial (1), DBQ Medical Opinion-BH: PSYCH PTSD initial (1), DBQMedical Opinion – BH: PSYCH PTSD Initial 2 …

C&P Exams for Back, Hips and Knees, could someone review and …

https://community.hadit.com › … › Veterans Compensation & Pension Exams

 

Jun 11, 2017 – Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. Name of patient/Veteran: Is this DBQ being completed in conjunction with a VA 21-2507 , C&P Examination Request? [X] Yes [ ] No. ACE and Evidence Review ————- ———- Indicate method used to obtain medical information to complete this …

LHI C&P exams never received by VA (they say) – Veterans …

https://community.hadit.com › … › Veterans Compensation Benefits Claims Research

 

3 days ago – Hello all. Any idea how to get LHI (contractor) C&P exam results? The VA over the phone says they never received the DBQ’s which have now pasted the due date. Called both places I had the exams at and left a voicemail. The day of exams both places said they would be sent in within 24 hours of exam so I guess they …

Secondary Conditions: How to file? – Veterans Compensation Benefits …

https://community.hadit.com › … › Veterans Compensation Benefits Claims Research

 

1 day ago – The veteran can go ahead and get the medical opinion/DBQ for each proposed secondary condition, with adequate medical rationale and appropriate jargon (” as likely as not”, “more likely than not”, or “due to/caused by”). Once all 3 requirements are met, they could go ahead and file a fully developed claim. If the medical …

38CFR4.15 Total Disability

From 38 CFR 4 Schedule for Rating Disabilities

38CFR4.15 Total disability ratings.

The ability to overcome the handicap of disability varies widely among individuals. The rating, however, is based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. However, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effect of combinations of disability. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; Provided, That permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. The following will be considered to be permanent total disability: the permanent loss of the use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or permanently bedridden. Other total disability ratings are scheduled in the various bodily systems of this schedule.

38CFR4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability:

(1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable,

(2) disabilities resulting from common etiology or a single accident,

(3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric,

(4) multiple injuries incurred in action, or

(5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

(Authority: 38 U.S.C. 501)

(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996; 79 FR 2100, Jan. 13, 2014]

38CFR4.17 Total disability ratings for pension based on unemployability and age of the individual.

All veterans who are basically eligible and who are unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent shall be rated as permanently and totally disabled. For the purpose of pension, the permanence of the percentage requirements of § 4.16 is a requisite. When the percentage requirements are met, and the disabilities involved are of a permanent nature, a rating of permanent and total disability will be assigned if the veteran is found to be unable to secure and follow substantially gainful employment by reason of such disability. Prior employment or unemployment status is immaterial if in the judgment of the rating board the veteran’s disabilities render him or her unemployable. In making such determinations, the following guidelines will be used:

(a) Marginal employment, for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration will not be considered incompatible with a determination of unemployability, if the restriction, as to securing or retaining better employment, is due to disability.

(b) Claims of all veterans who fail to meet the percentage standards but who meet the basic entitlement criteria and are unemployable, will be referred by the rating board to the Veterans Service Center Manager or the Pension Management Center Manager under § 3.321(b)(2) of this chapter.

(Authority: 38 U.S.C. 1155; 38 U.S.C. 3102)

[43 FR 45348, Oct. 2, 1978, as amended at 56 FR 57985, Nov. 15, 1991; 71 FR 28586, May 17, 2006; 74 FR 26959, June 5, 2009]

Total Disability Ratings Based on Individual Unemployability (IU) – VA Training  Letter 10-97 Rescinds Training Letter 07-01  

VA TL 10-07 below Rescinds VA TL 07-01 | September 14, 2010 | SUBJ: Adjudication of Claims for Total Disability Based on Individual Unemployability (TDIU)
PURPOSE
Our purpose in issuing this training letter is to revise and clarify our policies and procedures concerning the adjudication of TDIU decisions in order to restore the original intention of the TDIU evaluation – accurately, timely, and adequately compensating our Veterans who are unable to be gainfully employed due to service-connected disabilities.
BACKGROUND
VA has a longstanding and well-established policy of granting total disability ratings to Veterans who, due to service-connected disability(ies), are unable to secure and maintain substantially gainful employment even if a Veteran’s combined disability evaluation does not result in a total schedular evaluation. The provisions of 38 C.F.R. § 4.16(a) provide the minimal schedular standards for TDIU consideration: if there is one disability, this disability shall be ratable at 60 percent or more; and, if there are two or more disabilities, there must be at least one disability ratable at 40 percent or more and additional disability to bring the combined rating to 70 percent or more. Alternatively, if these schedular requirements are not met, but the evidence shows the Veteran is unemployable due to service-connected disabilities, 38 C.F.R. § 4.16(b) authorizes VA to grant a TDIU evaluation on an extra-schedular basis upon approval by the Director, Compensation and Pension Service.
In recent years, several factors, including internal inconsistencies in developing and adjudicating TDIU decisions and changing policies and procedures issued in response to court decisions addressing the TDIU issue, have led to a conclusion that the TDIU issue requires new guidance. A review of TDIU grants has also revealed that the benefit is, at times, granted on a quasi-automatic basis when the Veteran attains a certain age and/or schedular rating.  This practice is not supported by VA regulation or policy.
History of TDIU Evaluations
The regulatory history does not provide an explanation for the creation of TDIU ratings. VA’s 1933 Schedule for Rating Disabilities (VASRD) provided the first definition of total disability as existing “when there is (or are) present any impairment (or impairments) of mind or body which is (or are) sufficient to render it impossible for the average person to follow a substantially gainful occupation.” A 1934 revision of the VASRD provided the first authorization of a TDIU rating, sanctioned total disability ratings “without regard to the specific provisions of the rating schedule if a Veteran with disabilities is unable to secure or follow a substantially gainful occupation as a result of his disabilities.”
In 1941, the Administrator of Veterans Affairs issued an extension of the 1933 VASRD, which provided that total disability ratings may be assigned without regard to the specific provisions of the rating schedule when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of his/her disabilities.  The 1941 regulation also provided the current TDIU rating criteria.
The 1945 Schedule for Rating Disabilities established that age may not be considered a factor in evaluating service-connected disability, and that service-connected unemployability could not be based on advancing age or additional (nonservice-connected) disability.  (Paragraph 16, General Policy in Rating Disability)
38 C.F.R. § 4.16(a) became effective in March 1963. The regulation was amended in September 1975 to include subsection (b), which authorized a TDIU evaluation on an extra-schedular basis. In March 1989, subsection (c) was added to § 4.16, which directed that if a Veteran was rated 70 percent for a mental disorder that precluded gainful employment, 38 C.F.R. § 4.16(a) was not for application and such Veteran was to be assigned a 100-percent schedular evaluation.
In August 1990, 38 C.F.R. § 4.16(a) was revised to include language that marginal employment would not be considered gainful employment and also provided a definition of what constituted marginal employment. Following VA’s adoption of the fourth edition of the Diagnostic and Statistical Manual for Mental Disorders, 38 C.F.R. § 4.16(c) was rescinded in October 1996. The provision was now viewed as being extraneous, as a Veteran with a service-connected mental disorder would not be disadvantaged with the application of the other subsections of 38 C.F.R. § 4.16.
Case Law
The Court of Appeals for Veterans Claims (CAVC) and the Court of Appeals for the Federal Circuit (Federal Circuit) have issued many precedent opinions that have substantively affected Veterans’ rights associated with TDIU evaluations, as well as how VA adjudicates the issue. Below are some of the most pertinent holdings in decisions concerning TDIU from both courts.
Moore v. Derwinski, 1 Vet.App. 83 (1991) The term “substantially gainful occupation” refers to, at a minimum, the ability to earn a living wage.
Wood (Clarence) v. Derwinski, 1 Vet.App. 367 (1991) An application for unemployability compensation is an application for increased compensation within the meaning of 38
U.S.C. § 5110(b)(2).
Blackburn v. Brown, 4 Vet.App. 395 (1993) Entitlement to TDIU compensation must be established solely on the basis of impairment arising from service-connected disabilities.
Hattlestad v. Brown, 5 Vet.App. 524 (1993) In determining entitlement to TDIU evaluations, a clear explanation requires analysis of the current degree of unemployability attributable to the service-connected condition as compared to the degree of unemployability attributable to the non-service connected condition.
Norris v. West, 12 Vet.App. 413 (1999) When VA is considering a rating increase claim from a claimant whose schedular rating meets the minimum criteria of § 4.16(a) and there is evidence of current service-connected unemployability in the claims file or under VA control, evaluation of that rating increase must also include an evaluation of a reasonably raised claim for TDIU.
Faust v. West, 13 Vet.App. 342 (2000) In determining entitlement to a TDIU rating, VA must consider the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. A determination of whether a person is capable of engaging in a substantially gainful occupation must consider both that person’s abilities and employment history.
Hurd v. West, 13 Vet.App. 449 (2000) A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim.
Roberson v. Principi, 251 F.3d 1378 (2001) Once a Veteran submits evidence of a medical disability, makes a claim for the highest rating possible, and submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) that an informal claim “identify the benefit sought” has been satisfied and VA must consider whether the Veteran is entitled to TDIU.
Bradley v. Peake, 22 Vet.App. 280 (2008) The provisions of 38 U.S.C. § 1114(s) do not limit a “service-connected disability rated as total” to only a schedular 100-percent rating. A TDIU rating may serve as the “total” service-connected disability, if the TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to SMC at the (s) rate.
Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) A claim for a total disability evaluation due to individual unemployability (TDIU) is implicitly raised whenever a pro se Veteran (unrepresented), who presents cogent evidence of unemployability, seeks to obtain a higher disability rating, regardless of whether the Veteran specifically states that he is seeking TDIU benefits.
Rice v. Shinseki, 22 Vet.App. 447 (2009) A request for a total disability evaluation on the basis of individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits, but involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation, if entitlement to the disability upon which TDIU is based has already been found to be service connected. There is no freestanding TDIU claim.
Processing 
VA has historically handled TDIU claims as freestanding claims that were adjudicated separately from other compensation issues in its decisions. However, as a result of the Rice decision, a request for TDIU, whether specifically raised by the Veteran or reasonably raised by the evidence of record, is no longer to be considered as a separate claim but will be adjudicated as part of the initial disability rating or as part of a claim for increased compensation.
The current Veterans Claims Assistance Act (VCAA) notice letters used for original disability compensation claims or claims for increased evaluation are sufficient if a request for a TDIU evaluation is introduced. A separate notice letter for a TDIU evaluation is no longer required.  If a VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, or other submission expressly requests TDIU, this will be considered a claim for increased evaluation in all service-connected disabilities unless TDIU is expressly claimed as being due to one or more specific disabilities. The initial notice letter will provide VCAA compliant information for all service-connected disabilities that are not currently evaluated at the schedular maximum evaluation for that condition.
The principle of staged ratings may be applied in considering the effective date for a TDIU evaluation as either part of the initial disability evaluation or as part of a claim for increase. See Fenderson v. West, 12 Vet.App. 119 (1999); Hart v. Mansfield, 21 Vet.App. 505
(2007).
VA Forms 21-8940 and 21-4192
Notwithstanding any favorable medical evidence or opinion indicating that the Veteran is unemployable due to service-connected disabilities, a TDIU evaluation may not be granted if the evidence otherwise shows that the Veteran is engaged in, or capable of being engaged in, gainful employment. Accordingly, a VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, should still be forwarded to the Veteran if a request for a TDIU evaluation is expressly raised by the Veteran or reasonably raised by the evidence of record.
The VA Form 21-8940 remains an important vehicle for developing the claim and determining entitlement to a TDIU evaluation. However, the determination of an effective date for the establishment of a TDIU evaluation is no longer primarily based upon the date of receipt of the VAF 21-8940, but upon consideration of other factors such as the date of the original claim or claim for increase and the date that the evidence establishes inability to maintain substantially gainful employment due to service-connected disability(ies).
Once the VA Form 21-8940 is received and former employers are identified, then VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefit, will be forwarded to the former employers listed on the form. The VA Form 21-4192 requests that the employer provide information about the Veteran’s job duties, on-the-job concessions, date of and reason for job termination, etc. A TDIU evaluation should not be denied solely because an employer failed to return a completed VA Form 21-4192.
The VA Form 21-8940, while still important as a development tool, is not required to render a decision concerning whether or not to assign a TDIU evaluation. A decision concerning entitlement to a TDIU evaluation may be rendered without a completed VA Form 21-8940 of record, based on the entire body of evidence available.
Examinations
VA examinations are generally undertaken in conjunction with original disability compensation claims and claims for increase in accordance with VA’s statutory duty to assist a Veteran in developing his/her claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In such claims, if a request for a TDIU evaluation is expressly raised by the Veteran or reasonably raised by the evidence of record, a general medical examination is to be scheduled. Specialty examinations (Eye, Audio, Mental, Traumatic Brain Injury, and Dental) may also need to be scheduled.  These specialty examinations are only to be ordered when the Veteran is service connected for an eye, audio, mental, or dental condition that is not already at the schedular maximum, even if this condition is not one that the Veteran is claiming as causing his or her unemployability. Additionally, the examiner should be requested to provide an opinion as to whether or not the Veteran’s service-connected disability(ies) render him or her unable to secure and maintain substantially gainful employment, to include describing the disabilities’ functional impairment and how that impairment impacts on physical and sedentary employment.
In applying the Court’s holding in Bradley, if the medical evidence is insufficient to render an adjudicative determination as to whether the Veteran’s TDIU entitlement solely originates from a single service-connected disability, and there is potential entitlement to SMC at the (s) rate, the VA examination should also include an opinion as to what disability or disabilities render the Veteran unable to secure and maintain substantially gainful employment.
Other TDIU Development Considerations
If the evidence indicates that the Veteran has been seen by the Vocational Rehabilitation and Employment Service (VR&E) or has applied for disability benefits from the Social Security Administration (SSA), these records, to include any decisions and supporting documentation, must be obtained.
The Rating Decision
Although TDIU is no longer a freestanding claim, the determination of entitlement to a TDIU evaluation, raised as part of an original claim or claim for increased evaluation, must still be disposed of as a separate issue in the rating decision.
In assigning the effective date for a TDIU evaluation, the regulations concerning effective dates for original claims and claims for increase – 38 C.F.R. §§ 3.400(b)(2) or (o) – will be applied. Also, when a TDIU evaluation is assigned, the evidentiary record should be carefully reviewed to determine the applicability of 38 C.F.R. § 3.156(b), whether as part of an initial disability rating or as part of a claim for increase. 38 C.F.R. § 3.157 may be applicable in claims for increased evaluation that also raise a request for a TDIU evaluation.  (For further guidance, see our Decision Assessment Document in Rice v.
Shinseki, May 6, 2009).
In compliance with the Bradley holding, if TDIU is granted, a determination must also be rendered as to what specific service-connected disability(ies) render the Veteran unemployable. Generally, there would have to be clear and substantial evidence to show that unemployability is caused by a single disability when there are multiple service- connected disabilities. In original disability claims, where service connection is not established for any disability, the issue of entitlement to a TDIU evaluation is rendered moot, unless specifically claimed.
When establishing an end product for TDIU, it will be adjudicated as part of the initial disability rating or as part of a claim for increase. If a claim for TDIU is received after development has been initiated, to include VCAA notification, and a determination of entitlement to service connection for the disability upon which TDIU is based is still pending or has not been found, adjudicate the TDIU issue under the existing end product.
In situations where TDIU is inferred and additional evidence is needed, rate all other claimed issues that can be decided before rending a decision on TDIU entitlement. Show the issue of potential TDIU entitlement as deferred in the rating decision. Develop the inferred TDIU issue under the existing or appropriate end product, which will remain pending. Send the Veteran a VA Form 21-8940 to complete and return. Every inferred TDIU request that is deferred for additional evidence must be resolved by a formal rating decision after the evidence is received or the notification period expires. See Fast Letter 08-06 (February 27, 2008).
Whenever a rating decision grants TDIU and establishes permanency, it must include the statement, “Basic eligibility under 38 U.S.C. Chapter 35 is established from [date].” This statement is required regardless of whether or not there are potential dependents.
Continuing Requirements for the TDIU Award
As inability to maintain substantially gainful employment constitutes the basic criteria that must be satisfied for a TDIU evaluation, after the initial TDIU grant is awarded, VA must continue to ensure that the Veteran is unemployable.
Therefore, the Veteran must complete and return a VA Form 21-4140, Employment Questionnaire, annually for as long as the TDIU evaluation is in effect. Yearly submission of the form is required unless the Veteran is 70 years of age or older, or has been in receipt of a TDIU evaluation for a period of 20 or more consecutive years (See 38 C.F.R. § 3.951(b)), or has been granted a 100-percent schedular evaluation. The form is sent out annually to the Veteran from the Hines Information Technology Center and must be returned to the regional office. It requests that the Veteran report any employment for the past twelve months or certify that no employment has occurred during this period. The VA Form 21-4140 must be returned within 60 days or the Veteran’s benefits may be reduced. If the form is returned in a timely manner and shows no employment, then the TDIU evaluation will continue uninterrupted. The VA Form 21-4140 must be returned with the Veteran’s signature certifying employment status. A telephone call to the Veteran is not acceptable to certify employment status for TDIU claims.
If the VA Form 21-4140 is timely returned and shows that the Veteran has engaged in employment, VA must determine if the employment is marginal or substantially gainful employment. If the employment is marginal, then TDIU benefits will continue uninterrupted. If the employment is substantially gainful, then VA must consider discontinuing the TDIU evaluation. 38 C.F.R. § 3.343(c)(1) and (2) provide that actual employability must be shown by clear and convincing evidence before the benefit is discontinued. Neither vocational rehabilitation activities nor other therapeutic or rehabilitative pursuits will be considered evidence of renewed employability unless the Veteran’s medical condition shows marked improvement. Additionally, if the evidence shows that the Veteran actually is engaged in a substantially gainful occupation, the TDIU evaluation cannot be discontinued unless the Veteran maintains the gainful occupation for a period of 12 consecutive months.  See 38 C.F.R. § 3.343(c).
Once this period of sustained employment has been maintained, the Veteran must be provided with due process before the benefit is actually discontinued, as stated at 38 C.F.R.
§§ 3.105(e) and 3.501(e)(2).  This consists of providing the Veteran with a rating that
•       Proposes to discontinue the IU benefit
•       Explains the reason for the discontinuance
•       States the effective date of the discontinuance, and
•       States that the Veteran has 60 days to respond with evidence showing why the discontinuance should not take place.
If the TDIU evaluation is discontinued, the effective date of the discontinuance will be the last day of the month following 60 days from the date the Veteran is notified of the final rating decision. If the VA Form 21-4140 is not returned within the 60 days specified on the form, then the regional office must initiate action to discontinue the TDIU evaluation pursuant to 38 C.F.R. § 3.652(a). Due process must also be provided with a rating decision that proposes to discontinue the TDIU benefit for failure to return the form. If a response is not received within 60 days, then the TDIU evaluation will be discontinued and a rating decision will be sent to the Veteran providing notice of the discontinuance.  The effective date of discontinuance will be the date specified in the rating decision which proposed discontinuance, as described above, or the day following the date of last payment of the TDIU benefit, as specified at § 3.501(f), whichever is later. The Veteran must also be notified that if the form is returned within one year and shows continued unemployability, then the TDIU evaluation may be restored from the date of discontinuance.
VA may also use the income verification match (IVM) to verify continued unemployability.  The IVM is a method of comparing a TDIU recipient’s earned income, as reported to VA by other federal agencies, with the earned income limits that define marginal employment.  If income reports show significant earned income above the poverty threshold, the regional office must undertake development to determine if the Veteran is still unemployable. IVM information does not meet the requirements for a completed VA Form 21-4140 for the purpose of continuing TDIU benefits. A completed VA Form 21-4140 still must be provided by the Veteran for continuation of TDIU benefits.
Another method of monitoring unemployability status among TDIU recipients is through the VA Fiduciary Activity. This service conducts field examinations when it has been notified that a TDIU recipient might be pursuing a substantially gainful occupation. If the field examiner finds evidence of employment or if the Veteran is unwilling to cooperate with the examiner, then the examiner will forward this information to the Rating Activity. A decision must then be made as to whether the TDIU evaluation will be discontinued.
The regulatory requirements listed above will be applied to the determination.
As an exception to the aforementioned procedures; if the veteran has certified no employment status in a VA Form 21-4140 and VA obtains credible information indicating that the veteran has engaged in gainful employment, continued entitlement to TDIU benefits may be terminated on the basis of fraud. The due process provisions of § 3.105(e) must still be followed. However, if a finding of fraud is confirmed, the effective date of termination of TDIU benefits will be the day preceding the date that VA received the veteran’s VA Form 21-4140 that fraudulently certified continuation of no employment status.  See 38 C.F.R. § 3.500(k).
Scenarios
Below are several factual scenarios intended to illustrate how claims involving requests for TDIU evaluations should be developed and rated, as well as the appropriate regulations to be applied in determining the effective date of the TDIU evaluation.
(1)  A Veteran files a claim for service connection for PTSD in January 1999. The RO grants service connection in November 1999 with a 50-percent evaluation. The Veteran files a Notice of Disagreement (NOD) with the evaluation and submits a VAF 21-8940 in February 2000 indicating that he has been unable to work due to PTSD. The RO, in September 2000, grants a 70-percent evaluation for PTSD from January 1999 and also assigns a TDIU evaluation effective January 1999.
In this scenario, the TDIU evaluation is considered as part of the initial disability rating, not a freestanding TDIU claim.  38 C.F.R. § 3.156(b) is applicable as the
Veteran had submitted evidence of unemployability within the appeal period and 38
C.F.R. § 3.400(b)(2) will be applied in determining the effective date of the TDIU evaluation.
(2)  The Veteran has been service connected for several disabilities, to include migraine headaches, since 2001. In March 2006, he/she submits a claim for increased evaluation for migraine headaches, rated 10-percent disabling at the time, stating that the frequency and severity of his migraine headaches have worsened.  The RO issues a decision in December 2006 granting a 50-percent evaluation from March 2006. His/her combined disability evaluation is also increased to 70 percent. The Veteran timely files an NOD in response to the evaluation assigned for migraine headaches and appears before a Decision Review Officer (DRO) in an informal conference. He/she submits a VAF 21-8940, additional medical evidence, and a letter from his/her employer indicating that the Veteran was unable to continue working because he/she missed too much time because of his/her migraine headaches and last worked in March 2006. The DRO, in February 2007, grants a TDIU evaluation effective March 2006.
In this scenario, the TDIU evaluation is considered as part of the claim for increased compensation. 38 C.F.R. § 3.156(b) is applicable as the Veteran had submitted evidence within the appeal period and 38 C.F.R. § 3.400(o) will be applied in determining the effective date. The effective date for the TDIU evaluation will be based upon the date it is factually ascertainable that the Veteran was unable to maintain substantially gainful employment due to his service- connected disability(ies), to include up to one year prior to the date of the March 2006 claim for increased evaluation under § 3.400(o)(2).
(3)  The Veteran is service connected for post traumatic stress disorder (PTSD), rated 50-percent disabling; arthritis of the knees, each rated 10-percent disabling; and several other disabilities that have been assigned noncompensable evaluations. He files a claim for increased evaluation for PTSD, stating that the condition has worsened and that he had to discontinue working due to problems associated with the condition. He submits medical evidence and identifies VA medical records that only concern treatment for PTSD and show difficulty in maintaining employment due to the mental disorder.
A VCAA notice for the PTSD evaluation and TDIU and a VA Form 21-8940 should be forwarded to the Veteran. The notice should not refer to the other service-connected disabilities, as the Veteran specifically indicated that only PTSD has rendered him unemployable. A general medical examination with a special psychiatric examination for PTSD is to be requested. The VA examiner should be requested to render an opinion concerning the effect of PTSD on employability as a request for a TDIU evaluation has been reasonably raised by the Veteran and the evidence of record.
(4)  The Veteran has been service connected for ankylosing spondylitis, rated 60-percent disabling; eczema, rated 30-percent disabling; and hiatal hernia, rated 10-percent disabling, since 2003. In January 2007, he submits a statement indicating that he cannot work due to his service-connected disabilities.
In this scenario, the correct course of action is to send the Veteran a VCAA notice for claims for increased evaluation that pertain to all service-connected disabilities not currently at the schedular maximum evaluation, as the Veteran did not specifically state what service-connected disability(ies) affects his employability.
The Veteran should be scheduled for a general medical examination that also includes an opinion as to whether or not the service-connected disability(ies) render the Veteran unable to secure and maintain substantially gainful employment.
This Training Letter rescinds Training Letter 07-01 (February 21, 2007). M21-MR,
IV.ii.2.F will be revised in accordance with this Training Letter.
WHO TO CONTACT FOR HELP
Questions should be e-mailed to VAVBAWAS/CO/21Q&A.
/S/
Thomas J. Murphy Director
Compensation and Pension Service
 

Unemployability from Hill and Ponton

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Excerpt from Hill and Ponton’s What is Post Traumatic Stress Disorder (PTSD)

The goal for many veterans is to get to a 100 percent disability rating, but this is not always possible through the rating schedule due to an individual’s particular conditions. But, there is another way to be awarded a 100 percent rating: total disability based on individual unemployability (TDIU). Under 38 C.F.R. s. 4.16, a total disability rating may be assigned if a person who fails to meet the schedular rating is, nevertheless, unable to obtain and maintain a substantially gainful occupation. TDIU is not a separate claim for benefits, but is instead part of the rating process. During the VA benefits process, a veteran is assumed to be seeking the highest benefit allowable, so if facts exist in the record that indicate the veteran is unemployable, the VA is obligated to consider and adjudicate TDIU. Note that this does not always happen, so it is in the veteran’s best interest to begin the TDIU process by submitting VA Form 21-8940 or submitting an informal claim for TDIU in a signed and dated letter or Form 21-4138 (Statement in Support of Claim). If the veteran does the latter, the VA will ask the veteran to complete and submit VA Form 21-8940, which is the formal application for total disability based on individual unemployability. The fact that TDIU claims can be raised by the record, but the VA also requires the submission of Form 8940 complicates the process of determining the correct effective date for TDIU, which is discussed below.

TDIU is an individualized determination that is made in the context of an individual veteran’s capabilities, whether or not an average person would be able to secure substantially gainful employment under the same conditions. Also note that the availability of work in the national or local economy is irrelevant to the consideration of TDIU, and the VA may also not consider the veteran’s age or any non-service-connected disabilities. When making a determination of TDIU, the VA will consider factors such as the frequency and duration of periods of incapacity or time lost from work due to disability, the veteran’s employment history and current employment status, the veteran’s educational history, and the veteran’s annual income from employment, if any. Standing alone, the fact that a veteran may be young or highly educated, or may have been recently employed with a long work career, is not a sufficient justification for a denial of TDIU. The VA is obligated to consider the totality of the circumstances regarding the veteran’s service-connected disabilities and inability to secure and maintain substantially gainful employment, keeping in mind the benefit of the doubt doctrine. If the veteran is taking medication to treat the service-connected disability, the VA should also make an assessment of the effects or side effects of the medication on the veteran’s employability. In addition, if the VA is put on notice that a veteran is receiving Social Security Administration benefits, it is obligated to obtain any relevant records.
The VA should schedule a general medical exam if a veteran expressly asks for a TDIU evaluation or the issue of TDIU is raised in the record. During the exam, the examiner will be asked to provide an opinion as to whether or not it is at least as likely as not that the veteran’s service-connected disability or combined disabilities make him or her unable to secure and maintain substantially gainful employment. The examiner must describe the disabilities’ functional impairment and how that impairment affects both physical and sedentary employment. See Part Three for more C&P exam tips.

TDIU TWO-STEP ANALYSIS

There is a two-step analysis for determining whether a veteran qualifies for TDIU. First, the veteran’s service-connected disabilities must satisfy certain percentage rating requirements under the rating schedule. Second, the veteran must be unable to secure substantially gainful employment due to his or her service-connected disabilities.
For the first step of the analysis, the veteran must have one service-connected disability that is rated at 60 percent or higher, or a combined disability rating of 70 percent, with one of the service-connected disabilities rated at least 40 percent. Note that for the combined disability calculation, certain disabilities are rated together, for example, disabilities that stem from the same accident or that are all part of the same body system.
It is also theoretically possible for a veteran who does not meet either the 60 percent or 70/40 percent requirement to qualify for extraschedular TDIU, although this is a difficult hurdle. For some veterans, they may not meet the percentage requirements, but the nature of their service-connected disability is such that they are not able to secure substantially gainful employment. For example, a veteran may suffer from debilitating migraines, which only have a maximum disability rating of 50 percent, but because the veteran must call in sick to work regularly, he is unable to keep a job. This veteran may want to argue that he should be receiving TDIU on an extraschedular basis. His case will be referred by the regional office to the VA Central Office in Washington, DC, where it will be reviewed by the Director of Compensation and Pension. The referral by the regional office must include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment, and other factors bearing on the issue, which will usually take the regional office a long time to gather and send along.
The second element of proving TDIU is that the veteran is unable to maintain substantially gainful employment due to his or her service-connected disabilities. Again, note that non-service-connected disabilities are irrelevant in the determination of TDIU. It is important for the veteran to emphasize that it is his or her service-connected disabilities in particular which are causing his or her inability to maintain substantially gainful employment.
What is substantially gainful employment? In simplest terms, substantially gainful employment is employment that is not marginal. Marginal employment means that a person’s earned annual income is less than or equal to the poverty threshold for one person as established by the United States Department of Commerce, Bureau of the Census. Sometimes it is possible for a veteran to earn more than the poverty threshold and still qualify for TDIU. For example, if he or she works in a sheltered environment such as a family business or if he or she is provided accommodations or leniencies by his or her employer on account of service-connected disabilities, such as excessive time off or the ability to leave work at will, that may be considered a sheltered work environment. If a veteran is working, whether in a sheltered environment or in less than substantially gainful employment, the VA will evaluate whether the fact that the veteran is employed is proof of the fact that he or she has the ability to find and secure substantially gainful employment. Therefore, it is important to make clear that while the veteran may be currently employed, he or she does not have the ability to perform work with reasonable consistency and for a reasonable time due to his or her service-connected disabilities. The best evidence for a TDIU determination is a professional opinion from a vocational expert or competent medical doctor stating the due to his or her service-connected disabilities, the veteran is unable to secure substantially gainful employment.

EFFECTIVE DATE

Perhaps the most complicated issue relating to TDIU is the effective date. Because TDIU is not a separate claim, but part of the rating process, it can be difficult to figure out when the award of TDIU should begin, and this is often something that the VA gets wrong. In simplest terms, to determine the effective date for TDIU you must first figure out the date on which the VA first received evidence from some source which indicates that the veteran was unemployable. This could be a letter from a doctor or a notation in medical records which states that the veteran is unable to work due to his or her service-connected disability. Second, you must determine the status of the veteran’s disabilities at the time the VA received this evidence.
There are three main ways to answer the second question. The first possibility is that the VA first received evidence of the veteran’s unemployability when he or she filed a claim for service-connection or when the VA was considering whether to grant service connection. If the VA eventually grants service-connection for the veteran’s disability and awards TDIU, the effective date for the TDIU would be the date the VA received the claim for service connection or the date the veteran first became unemployable due to his or her service-connected disabilities, whichever is later.
If the VA first received evidence of the veteran’s unemployability after the VA granted service connection, but before the VA made a final decision on the rating for the disability, the effective date for an award of TDIU would be the date the VA received the claim for service connection or the date the veteran first became unemployable due to his or her service-connected disabilities, whichever is later.
And finally, if the VA first received evidence of the veteran’s unemployability when he or she filed a claim for an increased disability rating or while a claim for an increased disability rating is pending, the effective date for an award of TDIU would be the date the VA received the claim for an increase in disability rating or the date the veteran first became unemployable due to his or her service-connected disability ratings, whichever is later.
As you can see, this can be a tricky determination to make, so it is always important to analyze the effective date set by the VA to see whether they got it right.

AFTER A TDIU DECISION

If TDIU is denied or the wrong effective date is assigned, the veteran can appeal the decision in the same manner as any other rating decision by filing a Notice of Disagreement (NOD) within one year of the date on the letter that accompanied the TDIU decision. If the veteran fails to file a NOD within one year, the decision becomes final and can only be reopened by submitting new and material evidence or by demonstrating that the decision was the product of clear and unmistakable error.
When a veteran is awarded a total disability rating based on TDIU, the VA may not reduce the benefits unless there is clear and convincing evidence that establishes that the veteran is capable of actual employability. This is a high burden for the VA to meet. Even if a veteran’s disability has materially improved, if the VA cannot prove by clear and convincing evidence that he or she is able to engage in substantially gainful employment, TDIU must be preserved. In addition, if a veteran’s disabilities improve and he or she decides to return to work, his or her TDIU benefits will continue for a year until they are terminated.
Before the VA reduces a disability rating, including TDIU, it must provide a notice of proposed reduction and give the veteran 60 days to submit evidence to show that his or her condition has not improved. The veteran also has the opportunity to request a hearing. It is also likely that the VA will request that the veteran report for a re-examination. An examination that is the basis for a reduction must be even more thorough than the examination that established the current rating or TDIU (see Part Three). The VA must review all the new evidence, including the re-examination report, in the context of all of the evidence in the record in order to reach a new decision on TDIU.

Can I work and receive TDIU? Yes, in some cases you can.

I can’t work if I’m getting Unemployability, right? No, in fact, unemployability does not always mean that a veteran is not working. The key, however, is that all income earned from employment must be at or below the poverty level, or from a job that is considered to be “sheltered”. These types of marginal employment are not considered as substantially gainful occupation.

Marginal employment is considered as “earned annual income that does not exceed the poverty threshold for one person as established by the US Department of Commerce, Bureau of the Census.” For 2016, the poverty level for which a veteran must be working under was $11,880.
IU Poverty Levels
Alternatively, a job in a “sheltered environment” (such as a family business, sheltered workshop, or a position tailored to the specific needs of the veteran) is considered to be marginal employment, even if that job earns an income over the current poverty threshold. Sheltered employment means that you are given concessions due to your service connected disabilities that would not normally be given to other employees. For example: a veteran with PTSD works for a family friend’s business. The family friend provides the veteran with an office and duties that afford limited interaction with other people. The veteran’s salary pays his bills, and is over the current poverty threshold. Because the veteran’s job has been tailored to his individual needs (limited interaction with other people), his job is considered to be sheltered, and therefore falls under “marginal employment.” The VA cannot consider this job as being substantially gainful employment, and must not use it against him in determining IU.

One thing that the VA often overlooks is the requirement that a veteran be able to maintain substantially gainful employment. For instance, a veteran may be able to hold a job for a few months, but then loses the job due to his service connected disabilities. He then may be able to get another job for a few months, before losing that one, and the cycle repeats. In such a case, the veteran is able to get jobs, but he is not maintaining employment, and is eligible for IU.
So, what does this mean on a practical level? First, it means that VA law does allow for some veterans who work to also receive IU benefits at the same time, depending on the circumstances. Second, it means that disabled veterans who are working should not automatically assume that they are not eligible for IU simply because they work.
Can a Veteran Earn an Income while Receiving VA TDIU Benefits?
To answer this question, we need only look to the law.

For those of you that don’t know what TDIU is, I encourage you to read this post to get a basic understanding of the 2 types of TDIU Benefits.

To those of you trying to win your VA TDIU Claim, I encourage you to consider whether a copy of the VA TDIU Field Manual, or the VA TDIU eBook Package – will help you understand and improve your VA TDIU Claims.

38 C.F.R. §4.16(a) – the section of the Code of Federal Regulations that states the requirements for eligibility for TDIU Benefits, states the following:

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities

Now, as I’ve discussed before on the Veterans Law Blog, the law does not clearly define what substantially gainful occupation is.
But the law DOES define what Substantially Gainful employment IS NOT.
Read the rest of 38 C.F.R. §4.16(a):

Marginal employment shall NOT be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.
Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. (emphasis is mine).

So there you have it – the 2 ways that Veteran can earn an income while receiving VA TDIU benefits: when the employment is “marginal” and when the employment is “sheltered”.
We’ll look at them in more detail, below.
You might ask “Why” a Veteran is allowed to earn an income in these 2 scenarios while receiving TDIU Benefits.
Truth be told, I have no clue why Congress wrote the laws this way when they wrote them – someday I’ll dig into the legislative history to understand it.
But since Congress allowed it, there is NOTHING wrong with Veterans getting Marginal or Sheltered Employment income while receiving TDIU Benefits.
Marginal Employment & TDIU Benefits.
This is the type of income that many Veterans are aware that they can receive even after being granted TDIU Benefits.
Simply go to the US Bureau of Census website, and look up the “poverty threshold for one person”.  (Click here to see the historical poverty ratings tables from 1959 – 2015).
You will see that, for 2014, the poverty threshold for one person is  $12,316 per year (if you are under 65), or $11,354 (if you are over 65).
Each year, the VA will ask you to verify your employment (or lack thereof) to determine whether you are eligible to continue to receive TDIU Benefits. They typically require that you use VA Form 21-4140 or 21-4140-1 to do this report.

The VA does cross check 2 databases that I know of:  Social Security databases that record your work/income history, and IRS databases that record your family income on your annual tax returns.  Word to the wise: if you are telling different income stories to different federal agencies, you are playing with fire, and may even be committing fraud.

If you indicate in this form that your income is higher than the poverty threshold, a proposal to reduce your TDIU benefits will be forthcoming.
It’s one of the few times that the VA acts with a sense of purpose – when they want to STOP paying you.
Sheltered Employment & TDIU Benefits
Another way that Veterans can earn an income while receiving TDIU Benefits is by participating in what is called “sheltered employment”.
There are many ways that your income can be considered “sheltered”, but 2 that are clearly identified in the regulation itself:

1) Family business

2) Sheltered Workshop (these are supervised workplaces for adults with a physical and/or mental handicap)

Now, just because you are working for a family business doesn’t mean your job is considered “sheltered employment”.  It has to be what the regulation refers to as a “protected environment”.
A protected environment occurs when the employer makes special accommodations to employ and provide an income for a family member or a disabled worker. This happens quite a lot  – a family business, to reduce its tax burden or simply to help another family member, pays a disabled Veteran family member an income that they would not otherwise be able to receive.
How can you tell if there is a protected work environment?
What kind of questions would you ask, and what kind of evidence would you need?
If you can get answers to these kinds of questions – typically in an affidavit by the business owner or the executive in charge of hiring/staffing – you will have a much stronger proof of entitlement to TDIU benefits even while earning an income well above the poverty threshold in a sheltered employment situation.
1) Did they employer provide any special accommodations (especially if they are not required to by the Americans With Disabilities Act) to accommodate the employee with disabilities?  These accommodations are most commonly adjustments to the work schedule, the work environment, or the work duties.

I have not handled a case yet where a major employer, covered by the Americans With Disabilities Act, provides an accommodation to a 100% disabled Veteran as required by law to do. This is an interesting question as to whether or not the employment could be considered sheltered when the company has a legal obligation to enact accommodations.  I am not aware of any VA precedent on this topic – if you do know of a precedential case on this topic, don’t hesitate to let me know!

2) If the employee leaves the company, will the business hire a “similarly situated” person to fill the position (i.e, another worker with a disability)?
There are 3 scenarios here:

Scenario #1:  If the business plans to modify the Veteran’s position after he or she leaves so that there are no longer accommodations to the work duties, environment or schedule, then you can make a pretty good argument that the employment is sheltered.  Why? Because it appears that the position may have been created or modified just for the disabled Veteran.

Scenario #2: If the business plans on continuing the accommodation, then its a pretty good argument that the position itself – and anyone that holds it – is sheltered employment.  (Many employers do this for the tax advantages available to certain types of “sheltered workshops”).

Scenario #3: If the business plans to eliminate the position after the disabled Veteran leaves the job, then it is most likely “sheltered employment”.

None of the above scenarios are absolute: the more evidence you can show that an employer created a job for a 100% disabled Veteran – whether for “feel-good” reasons, tax incentives, or any other reason other than common business reasons, the stronger your case of showing that your position is “sheltered employment”.
3) Is there evidence that another business in the same industry would NOT hire a similarly situated employee, and pay them a similar income, for the same type of work?
What do I mean here?
If your family business pays you $50,000 a year, while allowing you to come in to the job  “only on the days you feel up to it”, look to other businesses in the same  industry to see if they would pay that same salary to an employee that comes and goes at will.
Where do you get evidence of this sort of thing?
Honestly, you would hire an economist to prepare an expert report on the nature of the employment and whether or not it is sheltered, based on a survey of the particular industry.
This type of expert report can get really expensive, so I would not typically do this unless it was really questionable whether the employment was sheltered or not, and there was a lot riding on the outcome.
Frankly, providing evidence that answers Question #3 is probably a bit “over the top” in most Sheltered Employment claims.
Legal Advice in Sheltered Employment situations.
Be VERY careful with the Sheltered Employment rules.
They are not frequently applied, many in the VA do NOT know about them (or don’t understand them when they do know about them), and the Sheltered Employment Rules can lead to serious consequences if applied incorrectly.
I’m not telling any details here, but I know of a couple Veterans who have been charged with criminal fraud for collecting TDIU benefits while getting an income and doing nominal work for a family member’s business.
These charges usually will not stick – as the US Attorneys that prosecute these crimes have far less understanding of VA regulations than even most VA raters or Board Hearing Officials.
But you’re going to have to pay a criminal defense attorney to make it go away, and the VA ain’t repaying your attorneys fees.
That said, it is ALWAYS BEST  to get legal advice – call a VA Accredited attorney and ask for a consultation –  if you are considering earning income above the poverty threshold and want to know if it is or is not considered “sheltered employment”.

Can a 100 percent Disabled Veteran Work and Earn an Income?

You’ve just been rated 100% disabled by the VA. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons after being rated 100% disabled.

Some Veterans like to work to have something to do. Other Veterans like to work for non-profits or other organizations that provide a public service …. after all, Veterans as a community are more heavily oriented to public service than many other groups of people. Yet other Veterans still like to keep doing their job, as they find that the income from even a 100% VA disability rating is not enough to cover all their expenses.

Whether the family’s bills, funding college educations for kids and grand-kids, medical bills for spouses and children, or paying off the mountains of debt that have likely built up in the 5-10 years, you have probably been waiting for the Veterans Affairs to get off its arse and make the right decision….100% disability rating is barely enough money to live off.

So, here’s the answer…and it’s a lawyer’s FAVORITE answer…It Depends. Whether a 100 percent Disabled Veteran can work turns on the answer to this question: Are you getting a 100% schedular rating or 100% unemployability (aka, TDIU or IUIU)?

Veterans that Receive 100% Schedular Ratings have NO Limitations on Their Ability to Work.

Veterans are rated for their Veterans Affairs Disability based on a set of tables known as the VA Impairment Rating Tables. These are also known as the “Schedule of Ratings.” So, suppose your 100% VA Disability Rating comes because you qualify for the 100% rating specified for a single (or combination of multiple) service-connected conditions using the Schedule of Ratings. In that case, you have NO limitations on your ability to work.

Some Veterans think that this doesn’t make sense: after all, if you are 100% disabled, that means you can’t do anything, right? This is one of the problems with the VA Disability Compensation system – for years, we have been led to believe that the percentage of rating equates to a percentage of how much our body is disabled.

In reality, the percentage of your disability rating means that you have had that percentage of interference with your ability to earn an income.

So a Veteran whose service-connected condition equates to a 100% disability rating is not – in the eyes of the law – 100% disabled. Instead, in the eyes of the law, the Veteran’s ability to earn an income has been 100% interfered with.

Bottom line, if you are rated 100% using the Schedule of Ratings or the Impairment Rating Table
 – whether for one condition or multiple conditions – you can work as much or as little as you want.

Theoretically, you could make $1,000,000 a minute and still collect a 100% VA Disability Schedular Rating. Of course, to make that kind of money, you’d probably have to become a Congressional representative and put your hand into the pocket of some pretty unseemly political and lobbying organizations.

But the point is the same: Veterans that Receive 100% Schedular Ratings have NO Limitations on Their Ability to Work or earn an income.

Can a Veteran Earn an Income while Receiving VA TDIU Benefits?

To answer this question, we need only look to the law.

38 CFRCFR §4.16(a) – the section of the Code of Federal Regulations that states the requirements for eligibility for TDIU Benefits says the following:
Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the rating agency’s judgment, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.

As I’ve discussed before on the Veterans Law Blog, the law does not clearly define what substantially gainful occupation is. But the law DOES define what Substantially Gainful employment IS NOT.

Read the rest of 38 CFRCFR §4.16(a):
38 CFRCFR §4.16(a) – Marginal employment shall NOT be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the US Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist on facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop) when earned annual income exceeds the poverty threshold. (emphasis is mine).

So there you have it – the two ways veterans can earn an income while receiving VA TDIU benefits: when the employment is “marginal” and when the employment is “sheltered.”

We’ll look at them in more detail below.

You might ask “Why” a Veteran is allowed to earn an income in these two scenarios while receiving TDIU Benefits.

Truth be told, I have no clue why Congress wrote the laws this way when they wrote them – someday, I’ll dig into the legislative history to understand it.

But since Congress allowed it, there is NOTHING wrong with Veterans getting Marginal or Sheltered Employment income while receiving TDIU Benefits.

#1: Marginal Employment and TDIU Benefits.

Many Veterans know that they can receive this type of income even after being granted TDIU Benefits.

Go to the US Bureau of Census website, and look up the “poverty threshold for one person.” (Click here to see the historical poverty rating tables from 1959 – 2015).

You will see that, for 2014, the poverty threshold for one person is $12,316 per year (if you are under 65) or $11,354 (if you are over 65). 

Each year, the VA will ask you to verify your employment (or lack thereof) to determine whether you are eligible to continue to receive TDIU Benefits. They typically require that you use VA Form 21-4140 or 21-4140-1 to do this report.

The VA does cross-check two databases that I know of Social Security databases that record your work/income history and IRSIRS databases that record your family income on your annual tax returns. Word to the wise: if you are telling different income stories to different federal agencies, you are playing with fire and may even be committing fraud.

If you indicate in this form that your income is higher than the poverty threshold, a proposal to reduce your TDIU benefits will be forthcoming.

It’s one of the few times the VA acts with a sense of purpose – when they want to STOP paying you.

#2: Sheltered Employment & TDIU Benefits

Another way veterans can earn an income while receiving TDIU Benefits is by participating in “sheltered employment.”

VA Disability: Forum Chat Message Discuss Talk

There are many ways that your income can be considered “sheltered,” but two that are clearly identified in the regulation itself:

  1. Family business
  2. Sheltered workshops (these are supervised workplaces for adults with a physical and/or mental handicap)

Now, just because you are working for a family business doesn’t mean your job is considered “sheltered employment.” It has to be what the regulation refers to as a “protected environment.”

A protected environment occurs when the employer makes special accommodations to employ and provide an income for a family member or a disabled worker. This happens quite a lot – a family business, to reduce its tax burden or simply to help another family member, pays a disabled Veteran family member an income they would not otherwise be able to receive.

How can you tell if there is a protected work environment?

What kind of questions would you ask, and what type of evidence would you need?

If you can get answers to these kinds of questions – typically in an affidavit by the business owner or the executive in charge of hiring/staffing – you will have a much stronger proof of entitlement to TDIU benefits even while earning an income well above the poverty threshold in a sheltered employment situation.

  1. Did the employer provide any special accommodations (especially if the Americans With Disabilities Act does not require them) to accommodate the employee with disabilities? These accommodations are most commonly adjustments to the work schedule, the work environment, or the work duties. I have not handled a case yet where a major employer, covered by the Americans With Disabilities Act, provides an accommodation to a 100% disabled Veteran as required by law. This is an interesting question as to whether or not the employment could be considered sheltered when the company has a legal obligation to enact accommodations. I am not aware of any VA precedent on this topic – if you know of a precedential case on this topic, don’t hesitate to let me know!
  2. If the employee leaves the company, will the business hire a “similarly situated” person to fill the position (i.e., another worker with a disability)?
    1. There are three scenarios here:
      • Scenario #1:  If the business plans to modify the Veteran’s position after they leave so that there are no longer accommodations to the work duties, environment or schedule, then you can make a pretty good argument that the employment is sheltered. Why? Because it appears that the position may have been created or modified just for the disabled Veteran.
      • Scenario #2: If the business plans on continuing the accommodation, then it’s a pretty good argument that the position itself – and anyone that holds it – is sheltered employment. (Many employers do this for the tax advantages available to certain types of “sheltered workshops”).
      • Scenario #3: If the business plans to eliminate the position after the disabled Veteran leaves the job, then it is most likely “sheltered employment.”
    1. None of the above scenarios are absolute: the more evidence you can show that an employer created a job for a 100% disabled Veteran – whether for “feel-good” reasons, tax incentives, or any other reason other than common business reasons, the stronger your case of showing that your position is “sheltered employment.”

Is there evidence that another business in the same industry would NOT hire a similarly situated employee and pay them a similar income for the same type of work?

What do I mean here?

If your family business pays you $50,000 a year while allowing you to come into the job “only on the days you feel up to it,” look to other businesses in the same industry to see if they would pay that same salary to an employee that comes and goes at will.

Where do you get evidence of this sort of thing?

Honestly, you would hire an economist to prepare an expert report on the nature of the employment and whether or not it is sheltered, based on a survey of the particular industry.

This type of expert report can get really expensive, so I would not typically do this unless it was really questionable whether the employment was sheltered or not, and there was a lot riding on the outcome.

Frankly, providing evidence that answers Question #3 is probably a bit “over the top” in most Sheltered Employment claims.

Legal Advice in Sheltered Employment situations.

Be very careful with the Sheltered Employment rules.

They are not frequently applied, many in the VA do NOT know about them (or don’t understand them when they do know about them), and the Sheltered Employment Rules can lead to severe consequences if applied incorrectly.

I’m not telling you any details here, but I know of a couple of Veterans who have been charged with criminal fraud for collecting TDIU benefits while getting an income and doing nominal work for a family member’s business.

These charges usually will not stick – the US Attorneys that prosecute these crimes have far less understanding of VA regulations than most VA raters or Board Hearing Officials.

But you’ll have to pay a criminal defense attorney to make it disappear, and the VA isn’t repaying your attorney’s fees.

That said, it is ALWAYS BEST to get legal advice – call a VA Accredited attorney and ask for a consultation – if you are considering earning income above the poverty threshold and want to know if it is or is not; considered “sheltered employment.A

Can I apply for VA disability compensation for a disease or injury diagnosed after service?

Can I apply for VA disability compensation for a disease or injury diagnosed after service? Short Answer Yes you can. Read on.
Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. §§ 1110; 38 C.F.R. §3.303:
Establishing service connection generally requires medical, or in certain circumstances, lay evidence of

  1. a current disability; 
  2. an in-service incurrence or aggravation of a disease or injury;
  3. and a nexus between the claimed in-service disease or injury and the present disability.

References
Title 38 C.F.R. 3.303
Title 38, C.F.R, 3.309(a)
Title 38, C.F.R, 3.307(a)(2) and (a)(3)
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  
38 C.F.R. § 3.303(b).  The Federal Circuit recently held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309 (2015).  Walker v. Shinseki, 708 F.3d 1331, 1338 (2013).  Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015).

Diseases Within One-Year Post-Service

VA presumes service connection for certain diseases even though they were not present during military service. Some of these diseases in which presumptive service connection may be granted include hypertension, arthritis, diabetes mellitus, and peptic ulcers. A complete list of diseases is in Title 38, Code of Federal Regulation, 3.309(a).
 
The post-service disease must be at a compensable degree (i.e., 10% or more disabling) within one year after the date of separation from service, with certain exceptions. The regulation that governs eligible service dates for diseases that occur within one year after separation from service is in Title 38, Code of Federal Regulation, 3.307(a)(2) and (a)(3).

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DAVIDSON v. SHINSEKI, 581 F.3d 1313 (Fed. Cir. 2009)

Michael D. Austin, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent-appellee. With him on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Kirk T. Manhardt, Assistant Director. Of counsel on the brief were David J.

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Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)

David S. Forman, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, of Washington, DC, argued for claimant-appellant. With him on the brief was Anita Bhushan, of Atlanta, Georgia. Of counsel on the brief were Louis J. George and Barton F. Stichman, National Veterans Legal Services Program, of Washington, DC.

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Diseases Within One-Year Post-Service

VA presumes service connection for certain diseases even though they were not present during military service. Some of these diseases in which presumptive service connection may be granted include hypertension, arthritis, diabetes mellitus, and peptic ulcers. A complete list of diseases is in Title 38, Code of Federal Regulation, 3.309(a).
The post-service disease must be at a compensable degree (i.e., 10% or more disabling) within one year after the date of separation from service, with certain exceptions. The regulation that governs eligible service dates for diseases that occur within one year after separation from service is in Title 38, Code of Federal Regulation, 3.307(a)(2) and (a)(3).
 
Eligibility Requirements
  • You must be a Veteran who was discharged under conditions other than dishonorable.
  • You must have a disease that is at least 10% disabling within one year after separation from service
  • The disease must be among those listed in Title 38, Code of Federal Regulation, 3.309(a)
Exception: The requirement that the disease must have appeared within one year of separation from service does not apply to the following:
  • Hansen’s Disease must have appeared within three years after separation.
  • Tuberculosis must have appeared within three years after separation.
  • Multiple sclerosis must have appeared within seven years after separation.
  • Amyotrophic Lateral Sclerosis (ALS), also known as Lou Gehrig’s Disease any time after separation from service
 Evidence Requirements
  • The evidence must show that the disease is at least 10 percent disabling. (An example is you’re taking medication for hypertension.)
  • The evidence must show the disease appeared within the time limits shown above.
 How to Apply
  • Apply online using eBenefits, OR
  • Work with an accredited representative or agent, OR
  • Go to a VA regional office and have a VA employee assist you. You can find your regional office on our Facility Locator page.

Source: Diseases Within One-Year Post-Service